Guest Editorial: First Amendment Protects Profanities Too

Bijan at Santa Ana council meeting
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Santa Ana Mayor Miguel Pulido would be well advised to learn some basic First Amendment law and understand that profanities are speech protected by the Constitution.

On Tuesday, October 7, Mayor Pulido cancelled a scheduled City Council meeting when a man refused to take off a hat with the words, “Fuck the Police.” The man was a member of an activist group, CopWatch Santa Ana, and Mayor Pulido ordered him to remove his hat or leave. When the man refused, Mayor Pulido called off the meeting.

The Supreme Court long has held that the First Amendment protects offensive speech, including profanities. The leading case was Cohen v. California in 1971 and it is remarkably similar to Tuesday night’s events. Cohen was convicted for disturbing the peace for being in a courthouse in Los Angeles with a jacket that had on its back the words, ‘‘Fuck the Draft.’’ The Supreme Court ruled that the speech on Cohen’s jacket was protected by the First Amendment and could not be the basis for punishment.

Justice John Marshall Harlan II, writing for the Court, said: ‘‘We cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.’’ Justice Harlan explained that “the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.’’

Cohen reflects the basic First Amendment principle that the government may not prohibit or punish speech simply because others might find it offensive. It holds that profanities are speech protected by the Constitution. Cohen clearly was expressing a political message, as was the person wearing the hat on Tuesday night with the words, “Fuck the Police.”

Language that offends social norms is often uniquely effective in communicating a message. Indeed, no other words could have so succinctly and forcefully captured the idea conveyed by Cohen’s jacket; surely “fornicate the draft’’ or “ban the draft’’ would not have been nearly as effective in conveying the idea. The same, of course, is true of the message on the hat at Tuesday night’s meeting.

The hat obviously made Mayor Pulido uncomfortable and likely upset police officers who were present. But that is the purpose of the First Amendment’s protection of speech. There is no need for a Constitution to safeguard the speech we like. We would allow that to occur anyway. The First Amendment exists precisely to protect the speech we want to stop, the speech that makes us uncomfortable and offends us.

Mayor Pulido overreacted when he cancelled the City Council meeting. The hat did not disrupt the meeting; Mayor Pulido did. Ironically, his action likely encouraged others to wear similar hats and shirts in the future. Next time, Mayor Pulido should ignore them and let the meeting occur.

Erwin Chemerinsky is a member of the governing board of Voice of OC and a Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.

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